Relevance

Question 1

How should relevance questions be approached?

Answer 1

Relevance questions should be approached by:

1. Determine whether evidence is relevant (i.e. tends to prove or disprove a material fact).
2. If relevant, determine whether the evidence should be excluded based on: (i) judicial discretion (prejudice > probative value) or (ii) public policy (e.g. insurance, subsequent repairs.)

Question 2

What is relevance?

Answer 2

Evidence is relevant if it has any tendency to make the existence of any fact more or less probable than it would be without the evidence.

Generally, it must relate to the time, event, or person involved in the PRESENT litigation.

Question 3

What is the exception to the evidence must relate to the time, event, or person involved in the PRESENT litigation?

Answer 3

Even if the evidence does not relate to the time, event, or person involved in the PRESENT litigation, there are exceptions that make evidence relevant:

(i) complicated issues of causation may be established by evidence concerning other times, or events, or persons (e.g. damage to nearby homes caused by D’s blasting is relevant to prove D’s blasting damaged P’s home)
(ii) prior false claims or same bodily injury (to show this present claim is likely false or P’s condition may be from a former injury)
(iii) similar accidents or injuries caused by same event or condition (to show D had knowledge of a dangerous condition that is the cause of the injury)
(iv) previous similar acts admissible to prove intent
(v) rebutting claim of impossibility
(vi) sales of similar property
(vii) habit (regular response to a specific case of circumstances)
(viii) industrial or business routine
(ix) industry custom as evidence of standard of care

Question 4

T/F: Under the FRE, unfair surprise is not a valid ground for excluding relevant evidence.

Answer 4

True.

Question 5

What are the reasons to exclude relevant evidence for public policy reasons?

Answer 5

To exclude relevant evidence for public policy reasons, FRE excludes:

1. liability insurance (not admissible to show negligence or ability to pay)
2. subsequent remedial measures (evidence or repairs or precautionary measures following an injury are not admissible to prove negligence, culpable conduct, a defect in product or design, or a need for warning or instruction)
3. settlement offers (not admissible to prove or disprove the validity or amount of a disputed claim or to impeach a witness by prior inconsistent statement or contradiction)
4. offers to pay medical expenses
5. withdrawn guilty pleas (+ statements made in negotiation)

Question 6

T/F: For the exclusionary rule to apply to settlement negotiations, there must be some indication that the party is going to make a claim and the claim must be in dispute as to liability or amount.

Answer 6

True.

Question 7

How is evidence of liability insurance treated for exclusion purposes?

Answer 7

On the basis of public policy, liability insurance evidence is inadmissible to prove negligence or ability to pay.

But liability insurance is admissible to prove ownership or control, as impeachment, or as part of an admission of liability.

Question 8

How is evidence of subsequent remedial measures treated for exclusion purposes?

Answer 8

On the basis of public policy, subsequent remedial measures are inadmissible to prove negligence, culpable conduct, a defect in product or design, or a need for an instruction or warning.

But subsequent remedial measures are admissible to prove ownership or control, to rebut a claim that precautions were impossible, or to prove destruction of evidence.

Question 9

How is evidence for settle offers (or negotiation) treated for exclusion purposes?

Answer 9

On the basis of public policy, settlement offers are inadmissible to prove or disprove the validity or amount of a disputed claim, or to impeach by prior inconsistent statement or contradiction.

Settlement offers are admissible for all other purposes.

Question 10

How is evidence for offers to pay/payment for medical expenses treated for exclusion purposes?

Answer 10

On the basis of public policy, offers to pay/payment for medical expenses is inadmissible to show culpable conduct.

It is admissible for all other purposes.

Question 11

How is evidence for withdrawn guilty pleas treated for exclusion purposes?

Answer 11

On the basis of public policy, evidence of withdrawn guilty pleas and offers to plead guilty are almost always inadmissible.

Question 12

Which prior acts of misconduct are admissible?

Answer 12

The prior acts of misconduct that are admissible include:

```
Motive
Intent
Mistake (absence of
Identity
Common plan or scheme
MIMIC)
~~~

Question 13

What is required for admissibility of acts of misconduct?

Answer 13

To be admissible:

(i) must be sufficient evidence to support a jury finding that D committed the prior act; and
(ii) its probative value must not be substantially outweighed by danger or unfair prejudice (judge also has discretion)

Question 14

What’s the general rule for evidence?

Answer 14

If irrelevant, it is admissible.

All relevant evidence is admissible, unless there is some specific exclusionary rule is applicable or court uses its Rule 403 discretion to keep it out.

Question 15

What is Rule 403?

Answer 15

Court can exclude otherwise relevant evidence if it determines that the probative value is outweighed by one of the following:

• danger of unfair prejudice
• confusion of the issues (creates a side issue)
• misleading the jury
• undue delay
• waste of time (*not in TX - it’s unduly cumulative)

Question 16

P drove into a lamp post and sues the municipality in negligence, alleging that the placement of the post created a hazardous condition. Should the municipality be allowed to introduce evidence that P has frequently driven into other station objects?

Answer 16

No, generally P’s accident history is inadmissible if its purpose is to show P as accident-prone. The municipality can use P’s accident history to show if P’s injuries are at issue - aka to show that one of P’s prior accidents may have caused or contributed to P’s current injuries/damages.

Question 17

P drove into a lamp post and sues the municipality in negligence, alleging that the placement of the post created a hazardous condition. Several other cars had collided with the same lamp post that P ran into. Could P introduce those other accidents against the municipality?

Answer 17

Yes, could introduce evidence of those other accidents into evidence if the other accidents occurred under substantially similar circumstances.

This evidence can only be admitted for the of the following purposes:

(i) existence of dangerous condition
(ii) causation
(iii) prior notice to D (accidents preceded P’s)

Question 18

How do you determine habit evidence versus character evidence?

Answer 18

Habit evidence is admissible as circumstantial evidence of how the person/business acted on the occasion. Look for “always,” “invariably,” “automatically,” and “instinctively.” It must concern the frequency of conduct with the particularity of circumstances.

Character evidence refers to a person’s general disposition or propensity and is generally not admissible to prove conduct.

Question 19

Which is an example of admissible habit evidence?

a) Marvin invariably wears his seat belt when he drives.
b) I know Marvin, and he is habitually careful.
c) Marvin has caused several car accidents.
d) Marvin has a reputation for careless driving.

Answer 19

a) is admissible habit evidence, while all other are inadmissible character evidence

Question 20

What is a limiting instruction?

Answer 20

When the judge tells the jury to consider evidence is admissible for one purpose but not for another.

Question 21

P bought a cup of coffee that scalded her tongue. She sued D in negligence.

At trial, P sought to introduce evidence that after the accident, D installed new thermostats on its coffee-brewing equipment. P contends that this conduct is an admission by D that better safety controls were feasible. Admissible?

Answer 21

No, this subsequent remedial measure (design/policy change of thermostats) is inadmissible. This evidence is inadmissible because it is being used to show proof of D’s need for warning and it is not an issue of feasibility of a safer option because it is not up for dispute here.

Question 22

P bought a cup of coffee that scalded her tongue. She sued D in negligence.

At trial, P contends that D’s negligence is from failure to place warnings on its coffee cups. D defended that it was impossible to affix labels to its coffee cups. P seeks to introduce evidence that after the accident, D began to use cups with pre-printed warning labels. Admissible?

Answer 22

Yes, this subsequent remedial measure (design change of the cups) is admissible to show feasibility of a safer condition. It is admissible because the D brought it up as an issue in their defense.

Question 23

Which of the following statements is generally admissible to show a party’s liability in a civil case?

a) party’s offer to pay medical expenses
b) party’s admission of fact accompanying an offer to pay medical expenses
c) party’s settlement offer
d) party’s admission of fact made during settlement negotiations

Answer 23

b) party’s admission of fact accompanying an offer to pay medical expenses

Question 24

Where character evidence is directly _____ in a civil case, character evidence is admissible.

Answer 24

Where character is directly in issue in a civil case, character evidence is admissible.

Question 25

How is character evidence treated in criminal cases?

Answer 25

Evidence of D’s character to prove conduct in conformity is inadmissible during prosecution’s case-in-chief. It becomes admissible when D introduces evidence of a relevant character trait and it opens the door to prosecution’s rebuttal.

Question 26

T/F: Character trait is not an element of a crime.

Answer 26

True.

Question 27

T/F: As a general rule, evidence of D’s bad character is inadmissible to prove that the D probably acted in accordance with that character and committed the crime.

Answer 27

True. The exception is for sexual violence cases.

Question 28

T/F: If a criminal D introduces evidence of her good character, she puts her character in issue and the prosecution may rebut by presenting evidence of the D’s bad character.

Answer 28

True

Question 29

T/F: In a criminal case, if D puts her character in issue by having a character witness testify as to his opinion of the D or the D’s reputation, prosecution may test the character witness by cross-examination regarding the basis for his opinion or knowledge of the reputation that he has testified about (i.e., whether the witness knows of or has heard about specific instances of conduct by the defendant). If the witness denies knowledge of these specific instances of conduct, however, the prosecutor may NOT prove them by extrinsic evidence.

Answer 29

True.

Question 30

When can a criminal defendant introduce good character evidence?

Answer 30

A criminal defendant may introduce character testimony about his good reputation for a pertinent trait to show that he is innocent of the charged crime.

Question 31

D was on trial on a hit and run charge, whereby the prosecution asserted that the D’s vehicle struck and injured an elderly P, and then D sped away from the scene of the accident without stopping to assess the pedestrian’s injuries or to render assistance. D took the stand and denied the charge. A priest is ready to testify that he has known D for 12 years, and that D is a highly responsible person who would not run away from his obligations by leaving the scene of an accident.

If the prosecution objects to the priest’s proposed testimony, should the court bar the priest from testifying?

Answer 31

The priest’s testimony as to the defendant’s responsible nature is admissible as circumstantial evidence that he was not driving the hit-and-run vehicle. The accused in a criminal case can introduce evidence of his good character to show his innocence of the alleged crime. Whether the defendant was the driver of the hit-and-run vehicle is a critical issue in the case; thus, testimony that the defendant is a responsible person who would not leave the scene of an accident pertains to a relevant character trait. The priest, having known the defendant for 12 years, is qualified to give his personal opinion as to the defendant’s character. The court should therefore permit the priest to testify.

Question 32

When is evidence of other crimes or misconduct admissible for a criminal defendant?

Answer 32

Extrinsic evidence of the defendant’s other crimes or misconduct is inadmissible if such evidence is offered solely to show that the defendant is violent and therefore has a criminal disposition.

Otherwise, MIMIC applies: evidence of other crimes or misconduct is admissible to show:

• Motive
• Intent
• Mistake (absence of)
• Identity
• Common scheme or plan

Question 33

In order for a defendant’s prior misconduct to be admissible for some relevant non-character purpose (motive, intent, etc.), there must be:

Answer 33

Independently relevant uncharged misconduct by the defendant will be admissible, without a preliminary ruling, as long as there is sufficient evidence to support a jury finding that D committed the prior act.

Question 34

Prior misconduct evidence is inadmissible if the danger of unfair prejudice __________ the probative value.

Answer 34

substantially outweighs

Question 35

D is charged with beating V to death with a set of brass knuckles during the course of a fight in a tavern. V was found to have a pistol on his person at the time of the fight. During the course of the trial, D took the stand in his own defense and testified that V threatened him with a gun and D had hit V with the brass knuckles in self-defense. To rebut the D’s claim, prosecution wishes to place the bartender on the stand, who will testify that two years prior to the attack on V, she had seen D approach a customer in her tavern from behind, put on a pair of brass knuckles, and strike the customer a severe blow on the side of the face with a brass-knuckled fist.

How should the court rule on the admissibility of the bartender’s testimony?

Answer 35

The bartender’s testimony is inadmissible because D’s prior fight cannot be admitted to prove his propensity to beat someone to death. The basic rule is that when a person is charged with one crime, extrinsic evidence of his other crimes or misconduct is inadmissible if such evidence is offered solely to establish a criminal disposition. While evidence of other crimes is admissible if it is independently relevant to some other issue (e.g., motive, intent, or identity), the defendant’s prior fight appears to have no relevance other than as evidence of his violent disposition. It is therefore inadmissible.

A specific act of misconduct must be probative of truthfulness and can be elicited only on cross-examination of the witness. Extrinsic evidence is not permitted. Therefore, testimony concerning the defendant’s prior incident is not admissible for impeachment.

Question 36

The complainant was robbed by a man wielding an unusual knife with a pearl-studded handle. The defendant was arrested and charged with armed robbery of the complainant. At trial the prosecution calls a witness to testify that, three days after the robbery of the complainant, she was robbed by the defendant with a knife that had a pearl-studded handle.

Should the court rule that the witness’s testimony is admissible?

Answer 36

The court should admit the evidence for purposes of establishing identity. Other crimes and wrongs are generally not admissible to prove that a person acted in conformity with his bad character. However, they are sometimes admissible for other purposes, such as to establish the identity of the accused. Other crimes are admissible on identity when they are committed in a unique way that shows what amounts to a “signature” of the perpetrator. Given the highly unusual weapon in this case, the court should hold that the evidence is admissible to show that the defendant was the perpetrator.

Question 37

P sued his neighbor over a 10-foot-high stockade fence that the neighbor was building adjacent to the P’s backyard. The local zoning ordinance permitted a fence of this height unless it was a “spite fence.” P alleged that the neighbor was building the fence to block sunlight to the garden that P had planted. The neighbor denied that she was building the fence for that purpose. P wishes to introduce evidence that the neighbor had sprayed herbicide towards the garden previously.

Should the judge permit the P’s testimony?

Answer 37

The judge should permit P’s testimony because evidence of specific acts of misconduct is admissible to show motive. Evidence of other acts may be admissible in a criminal or civil case if they are relevant to some issue other than character, such as motive. Here, whether the neighbor was motivated by an improper purpose in building the fence is the key issue in the lawsuit by P. The neighbor’s prior misconduct in spraying herbicide toward P’s garden is circumstantial evidence that her hostility toward the garden motivated her to build the fence.

Question 38

A defendant is being tried for the murder of a victim, which occurred during the burglary of the victim’s house. In its case-in-chief, the prosecution seeks to offer evidence that the defendant, who was arrested several days after the crime, had been caught with several grams of cocaine in his car.

This evidence will most likely be:

Answer 38

The evidence will likely be inadmissible. Other crimes and wrongdoings of a defendant are sometimes admissible to prove motive, opportunity, intent, preparation, plans, knowledge, identity, or absence of mistake, provided that the probative value of the evidence is not substantially outweighed by prejudice or other Rule 403 considerations. On these facts, the probative value of possession of cocaine seems very slight and is highly prejudicial. Therefore, the evidence will probably be inadmissible.

Question 39

A husband was on trial for the murder of his wife. During the course of the trial, the prosecution sought to introduce evidence that, six months before the wife’s death, the husband had purchased a large insurance policy on her life, and two weeks prior to her death he purchased two more large policies on the wife’s life from separate insurance carriers.

If the defense objects to admission of such evidence, should the objection be sustained?

A - Yes, because such evidence would be more prejudicial than probative.

B -Yes, because evidence of insurance is inadmissible as a matter of public policy.

C - No, because the evidence tends to establish motive.

D - No, because the evidence tends to establish criminal propensity.

Answer 39

(C) Evidence of the husband’s purchases of insurance on the wife’s life shortly before her death is admissible because it has a tendency to make the husband’s murder of his wife more probable than it would be without the evidence.

Generally, all relevant evidence is admissible if offered in an unobjectionable form or manner, as is the case here. This evidence is relevant because it establishes a motive for the murder, and facts showing motive for doing an act are circumstantial evidence that the act was done. Because there are no other grounds for excluding the evidence, it should be admitted.

(A) is incorrect because exclusion of evidence on the ground of prejudice is a matter within the trial judge’s broad discretion, and requires that the evidence’s probative value be substantially outweighed by the danger of unfair prejudice for it to be excluded. While all evidence is prejudicial to the adverse party, “unfair” prejudice refers to evidence that suggests a decision on an emotional or otherwise improper basis; evidence of the purchase of life insurance policies does not fall within this category.

Question 40

A plaintiff brought a personal injury action against a defendant, the owner of a small fishing resort, for injuries he suffered when a dockside chair he was sitting on collapsed. At trial, the plaintiff testified that he had reported to the defendant the previous day that one of the chairs had a loose leg, whereupon the defendant tightened the screws holding the leg to the chair body, but that the next day the repaired leg of the chair collapsed while the plaintiff was fishing from it, injuring him. The plaintiff now wishes to offer evidence showing that the defendant had attached a new chair leg after the accident.

Should the defendant’s objection to that evidence be sustained?

Answer 40

Evidence that the defendant had attached a new chair leg after the accident is inadmissible because, for public policy reasons, evidence of repairs or other precautionary measures made after an injury is inadmissible to prove negligence or culpable conduct. The purpose of this rule is to encourage people to make such repairs. Here, the plaintiff is offering the evidence to prove the defendant’s negligence in the original repair of the chair, by showing the need to attach a new leg. Thus, this evidence is inadmissible, and the objection should be sustained.